Packard v. Wilson

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing to retax costs.

The action was brought to foreclose a lien on a promissory note. The defendants demurred to the complaint, and their demurrer being overruled, final judgment was rendered in favor of the plaintiff for $7,053.61, and for the sale of the note and the application of the proceeds in payment thereof. The plaintiff filed a cost-bill, one of the items of which was as follows: “ Percentage allowed by law on judgment of $7,053.61, $100.” The defendants thereupon moved to have the cost-bill taxed, and to strike therefrom the item of one hundred dollars, on the grounds,—1. That the action was brought to foreclose a lien, and was not an action wherein percentage is allowed by law; and 2. That no issue of fact was raised in the action, and that the same was not a litigated case. The court denied the motion. Section 6 of the act of February 9, 1866, regulating fees in the city and county of San Francisco, provides “ that the prevailing party shall be allowed five per cent on the amount recovered, together with any sum by him so paid in a cause as costs and disbursements, to be included in the judgment against the adverse party; provided, said five per cent shall be allowed only in litigated cases; and provided further, that said percentage shall not be allowed to exceed the sum of one hundred dollars on any one judgment.” The. further facts are stated in the opinion.